Father Knows Best, Maybe

This past Thanksgiving, while enjoying a walk around a Minneapolis lake with my son, Ben, we discussed a wide range of topics, including the demise of the NBA, global warming, chocolate chip cookies, and his love of New York. The topic that created the most excitement was his true dismay that I was not troubled by, or even aware of, SOPA (Stop Online Piracy Act) and the companion bill PIPA (Protect IP Act).This proposed federal legislation would, according to my 27-year-old maven of social media and the web, be the end of the Internet as we know it. And, as an intellectual property attorney, it was my duty and the others in my profession to stop it!

I explained to him that I was not so omnipotent but also suggested that there was nothing to worry about. Spotify was not doomed. I confidently cited the many other failed legislative efforts, supported largely by the movie and recording industries, to halt the activities of rogue web sites and enhance the rights and remedies available to copyright owners. Remember Napster? And, anyway, I told him the Digital Millennium Copyright Act (“DMCA”) already provides remedies to copyright owners concerned about the unauthorized use of their material without creating liability for legitimate web site operators.

“But Dad,” he responded, “this is different. You should know about it. I don’t know all the details of the DMCA or these other legislative initiatives but this may pass and people need to be aware of the implications.” I have to say, he seemed genuinely concerned about issues of free speech and curbing innovation and not just the easy and cheap downloading of music and movies. And he got all this information from social media sites, rather than traditional media outlets.

And, he was right. I should have known about SOPA and PIPA. The proposed legislation would have imposed draconian penalties on allegedly infringing websites with limited due process.

On January 18, 2012, two days before the vote was scheduled in the Senate, a widespread online protest of SOPA and PIPA took place. Twitter, Facebook, and the blogs moved into action. Wikipedia, Reddit, and some 7,000 other websites initiated service blackouts, and the web was saturated with communications to raise awareness. Google posted a black banner on its site to support efforts to fight the proposed law. SOPA and PIPA were front-page news and covered by every media channel. President Obama announced (via Twitter) that he would never sign it into law. The sponsors of SOPA and PIPA withdrew their support.

So, while my son was indeed right about how bad SOPA and PIPA were, I was also correct when I told him not to worry, for it would never pass. His response? “Dad, the only reason they did not pass was because of the ability of concerned parties to organize and mobilize efforts to raise awareness through the Internet and shine a light on this legislation. Without social media and the web community, these laws would have passed and we would never have known about it.”

Is my son right? Was the massive media attention fostered by the organized efforts of the web community and social media the only reason SOPA and PIPA did not pass? Has traditional journalism become obsolete?

We shall soon see. The Online Protection and Enforcement of Digital Trade (OPEN) Act has already been introduced in the United States Congress as an alternative to SOPA/PIPA. This legislation seeks to stop transfers of money to foreign websites whose primary purpose is piracy or counterfeiting. Enforcement responsibility is with the United States International Trade Commission (ITC) and not the Justice Department. Google and Facebook appear to be supportive of this legislation while the Motion Picture Association (MPAA) and the Copyright Alliance representing individual artists and creators have voiced some concerns. OPEN appears to be an improvement over SOPA/PIPA. According to a recent New York Times editorial, “… [OPEN] may not be perfect…but it gives copyright holders powerful new tools to protect themselves, protecting legitimate expression on the Web from overzealous content owners.” No one knows yet whether OPEN will pass? 

So here I am, doing my part to shine a light on this legislation. Let’s see if my son is right and the web community will rally again to either support or stop this effort to curb copyright infringement without threatening innovation and legitimate expression.

*P.S. One thing Ben and I did agree on during our conversation—the absolute best dark chocolate chocolate chip cookies in the entire world can be had at Levain Bakery in New York’s Upper West Side.